Chicago W.D. Ry. Co. v. Ryan

• Decision Date: 21 January 1890
• Parties: CHICAGO W. D. RY. CO. v. RYAN.
• Court: Illinois Supreme Court

131 Ill. 474

23 N.E. 385

CHICAGO W. D. RY. CO.

v.RYAN.¹

Supreme Court of Illinois.

Jan. 21, 1890.

Appeal from appellate court, first district.

Wm. J. Hynes, (Edmund Furthmann, of counsel,) for appellant.

Abbott, Oliver & Showalter, for appellee.

MAGRUDER, J.

This is an action, begun on July 31, 1886, in the superior court of Cook county by the appellee, a minor, suing by his next friend, against the appellant company, to recover damages for a personal injury. The trial in the court below resulted in a verdict and judgment for $1,750 in favor of the plaintiff. The appellate court has affirmed the judgment, and from the latter court the cause is brought here by appeal.

The accident occurred on the 1st day of October, 1885. At that time the plaintiff was an infant, not quite 17 months old. On Indiana street, which runs east and west in the west division of the city of Chicago, and upon one of the street crossings, where Armour street, running north and south, crosses Indiana street, the plaintiff was struck and knocked down by one of appellant's street-cars, drawn by horses, going eastward upon Indiana street. His feet were caught under the car-wheels, and one of them so badly crushed that it was amputated a few hours after the injury. The child was so young that it was incapable of exercising care, and cannot be charged with negligence. It is claimed that no recovery can be had against the defendant, unless the plaintiff's parents, or the custodian in whose charge they had placed him, exercised reasonable and ordinary care for his safety. It is assigned as error that none of the instructions given for the plaintiff required the jury to find the exercise of ordinary care by the parents or custodian, and that all the instructions asked by the defendant which did so require were refused.

The question in this case is whether the driver of the car could have avoided the injury to the plaintiff, after the latter had been discovered to be in a position of danger. Even though the plaintiff had come into such position through the negligence of those having him in charge, the defendant's servant, who had control of the car, was bound to use reasonable care in avoiding an injury to the plaintiff, if he saw, or, by the exercise of ordinary prudence, might have seen, plaintiff's peril. If B., in the performance of some lawful work of his own, such as operating a street-car, has notice that A. is in danger of being hurt by what B. is doing, and that A. is unable to escape the danger, then B. must use reasonable care to prevent the threatened injury, and he is answerable for the want of such care. In Railroad Co. v. Godfrey, 71 Ill. 500, it was held that, although a party was guilty of negligence in placing himself upon a railroad track at a point where he had no right to be, yet the raiload company ‘might not, with impunity, wantonly or willfully injure him;’ and in that case we said: ‘If defendant's servants who were in the management of the engine, after becoming aware of plaintiff's danger, failed to use ordinary care to avoid injuring him, defendant might be liable.’ In Werner v. Railway Co., 81 Mo. 368, plaintiff's husband had fallen upon the railroad track in a state of intoxication, and while lying there was run over by one of defendant's cars between 8 and 9 o'clock at night, and killed. The driver testified that he saw an object ahead of the horses, but supposed it to be a bundle of hay or sack of oats. He could have stopped the car, but made no effect to do so, or to ascertain what the object was. It was there said: ‘If the negligence of a defendant, which contributed directly to cause the injury, occurred after the danger, in which the injured party had placed himself by his own negligence, was, or, by the exercise of reasonable care, might have been, discovered by the defendant in time to have averted the injury, then defendantis liable, however gross the negligence of the injured party may have been in placing himself in such position of danger.’ The doctrine is thus stated by Shearman and Redfield in their work on the Law of Negligence, (vol. 1, § 99, 4th Ed.:) ‘It is now perfectly well settled that the plaintiff may recover damages for an injury caused by the defendant's negligence, notwithstanding the plaintiff's own negligence exposed him to the risk of injury, if such injury was proximately caused by the defendant's omission, after becoming aware of the plaintiff's danger, to use ordinary care for the purpose of avoiding injury to him. We know of no court of last resort in which this rule is any longer disputed. * * * The plaintiff should...